Google asks Ninth Circuit to reverse app store antitrust verdict

SAN FRANCISCO (CN) — Google asked a federal appeals court Monday to throw out a federal judge’s ruling stemming from the 2023 antitrust trial where a jury found that Google’s Play Store and billing services on Android platforms constituted an illegal monopoly. The tech giant argues that it competes with Apple — and that the trial judge stopped it from hammering that point home.

In October 2024, U.S. District Judge James Donato ordered Google to open up Google Play and carry third-party app stores, and allow those third-party developers to have access to Google Play’s catalog of apps, among other remedies, in order to increase competition on the Android platform.

Epic Games sued Google in 2020 after Google removed Epic’s hit game Fortnite from the Google Play Store — after Epic hotfixed the game to bypass Google’s billing services. Google said this violated an agreement Epic had with Google to use its billing services for in-app purchases. (Epic also filed a parallel suit against Apple, which it mostly lost in front of U.S. District Judge Yvonne Gonzalez Rogers.)

The remedies were set to go into effect Nov. 1, 2024, before Donato agreed to pause its enforcement while Google appealed the ruling.

On Monday morning, Google told a three-judge appeals panel that the process leading up the 2023 trial was rife with legal errors and that Google was not guilty of anticompetitive conduct because it competes with Apple on the smartphone market.

Noting that Epic sued Apple and Google on the same date, Google attorney Jessica Ellsworth, argued, “Everyone agrees Google and Apple vigorously compete.”

When Epic moved for a temporary restraining order and injunction against Apple, it split the two suits into separate timelines, she said. After losing against Apple, Ellsworth said Epic took advantage of that split timeline to get a do-over for its initial loss against Apple.

Ellsworth, of the firm Hogan Lovells, said even the judge in the Apple suit ruled that Google and Apple are each other’s main competition.

“You can’t just lose an issue that’s fully litigated the first time around and then pretend that didn’t happen, and try to get a different result against a different adversary,” Ellsworth said. “These cases were filed on the same day by the same lawyers about the very same transactions. And Epic has never disputed that these cases are about the same transactions.”

U.S. Circuit Judge Danielle Forrest, a Donald Trump appointee, pushed back, telling Ellsworth there are factual differences between the Apple and Google cases that she was “brushing aside.”

Google also takes issue with Donato’s decision to allow a jury trial instead of a bench trial.

“If you look at Judge Gonzalez Rogers’ decision, she authored 185 pages, kind of carefully parsing the evidence, credibility: What were the anticompetitive effects arguments, what were the pro-competitive justifications? Was there a least restrictive alternative? She walked through all of that in great detail," Ellsworth said of the Apple ruling.

“In our case, what we have is a jury verdict," she continued. “The jury were asked eight questions where they had to check yes or no, and they offered 14 words defining a relevant market.”

Originally, the plaintiffs going up against Google included a bipartisan coalition of state attorneys general and the company Match Group, which owns popular dating app Tinder. Those parties settled before trial — and while they sought damages, Google argues, Epic was seeking to enjoin the tech giant’s conduct, making a jury trial inappropriate.

Gary Bornstein, counsel for Epic Games, said Google’s attempt to appeal the verdict was meritless and the lower court was well within its discretion to hold a jury trial after the plaintiffs seeking damages settled with Google.

He said Google’s assertions that Donato’s remedy would cause security risks on Android were overblown.

The Android app market, Bornstein said, has been “suffering under anti-competitive behavior for the better part of a decade” while Google attempted to get an ever bigger piece of the market by paying app developers to launch their apps on the Play Store.

The appeals court could deliver its ruling later this year. Forrest was joined on the panel by Senior U.S. Circuit Judge Mary McKeown, a Bill Clinton appointee, and U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee.